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Was it indirect sex discrimination to refuse a flexible working request to finish at 5pm?
The Employment Tribunal (“ET”) in the case of Mrs A Thompson v Scancrown Ltd T/a Manors has considered whether it was indirect sex discrimination to refuse an employee’s flexible working request to modify her working hours to accommodate for her childcare responsibilities and the closing time of the nursery her child attended.
The Claimant was employed by the Respondent, a small independent estate agency firm in Marylebone, as a sales manager. The Claimant was very highly regarded in her abilities and job role and was very successful in building sales income for the business.
The normal working hours of the office were from 9am to 6pm. In May 2018, the Claimant announced her pregnancy and subsequently was absent on maternity leave from October 2018 to October 2019. While on maternity leave, before the Claimant returned to work, she raised an informal flexible working request. The Claimant requested that she finish at 5pm instead of 6pm to enable her to pick her child up from nursery on time, before the nursery closed and to work a four-day week with her colleague covering her fifth day. The informal request was not accepted and on return to work, the Claimant raised this request formally. The Respondent refused this request and detailed 5 business reasons for their decision. The Claimant appealed this decision and later resigned on 23 December 2019.
The Claimant brought multiple claims to the ET (some related to other aspects of her earlier employment during her pregnancy), but most relevant to this summary is the indirect sex discrimination claim in respect of the flexible working request.
Section 19 of the Equality Act 2010 (“the Act”) defines indirect discrimination:
“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.”
Indirect discrimination is concerned with acts, decision or policies which in practice have the effect of placing a group of people with a particular protected characteristic at a disadvantage. Sex is included as a relevant protected characteristic under the Act. When such PCP has this effect, it will amount to indirect discrimination unless the employer can objectively justify the PCP. This means they have to demonstrate that the PCP is a proportionate means of achieving a legitimate aim otherwise indirect discrimination will be established.
The ET dismissed the other claims brought by the Claimant, but her claim of indirect sex discrimination succeeded. The Tribunal considered the provision operated by the firm, namely the neutral provision for sales managers to work full time 9am – 6pm, Monday to Friday and concluded that this practice does place women with children at a substantial disadvantage compared to men with children. The ET held that the Claimant did suffer a disadvantage as a result of this PCP as this meant she would be unable to collect her child from nursery before the nursery closed at 6pm.
The Tribunal went on to consider the Respondent’s objective justification, concluding that while they recognised the Respondent’s business concerns this did not outweigh the discriminatory impact on the Claimant. Therefore, the Claimant is found to have been indirectly discriminated against on the grounds of sex. The Claimant was compensated just less than £185,000 for her losses.
This case highlights the importance of employers responding appropriately to flexible working requests, taking all factors into account, both the needs of the business and any potential needs of the employee. When responding to requests, employers should assess their practices and assess whether the employee making the request may have a protected characteristic and whether they are likely to suffer a disadvantage if the request is refused. The pandemic introduced greater flexibility in working arrangements across the country, it is likely that many may seek for this flexibility to remain. Where this is the case, all requests should be dealt with independently and properly evaluated before any conclusion is reached.